Mukul Gopal Mukherji, J. - (1.) This is a revision at the behest of the husband-petitioner, who contends that in view of his subsequent divorce, the original order of maintenance passed in favour of the wife @ Rs. 250/- per month and in favour of the child @ Rs. 150/- per month would no more be enforceable against him. He filed in the Court below a proceeding under section 127, Cr.P.C. for the said purpose which stood rejected by the learned Judicial Magistrate at Alipore on 10.4.87. The petitioner then moved the learned Sessions Judge in Criminal Motion No. 110 of 1987. The learned Additional Sessions Judge, 9th Court, Alipore dismissed the revision holding inter alia that no such application under section 127, Cr.P.C., would at all be maintainable in the facts and circumstances of the case.
(2.) The learned Additional Sessions Judge was of the view that since no application under section 125 or under section 127, Cr.P.C., was pending at the relevant time when the Muslim Women (Protection of Rights on Divorce) Act, 1986 came into force, and the order of maintenance was passed much earlier, the petition by the husband dated 25.10.86 was not maintainable.
(3.) On the husband having moved the present application under section 401 read with 482, Cr.P.C., in view of the conflict of decisions operating in the field, I referred the matter to the Division Bench by my order dated 28.9.88. By order dated 18.5.89, a Division Bench comprising of Shamsuddin Ahmed and Pabitra Kumar Banerjee, JJ. sought to resolve the conflict and held inter alia as follows : [1989 C Cr LR (Cal) 197 at Pp. 203-204] "In respect of divorced woman, if an order under section 125, Cr.P.C., was passed, that order will cease to have effect on the date of commencement of the Muslim Women (Protection of Rights on Divorce) Act, 1986 with effect from 19.5.86. The result would be that no application under section 127 or any other provision of Chapter IX of the Code of Criminal Procedure will be maintainable in respect of a divorced woman in whose favour an order under section 125, Cr.P.C. was passed, taking her to be a divorced wife. But there may be cases where the Court, while passing order under section 125 Cr. P.C., may pass an order in favour of a wife not being a divorced wife and after such an order was passed by the Court, the wife concerned might be divorced by the husband. If the divorce is in accordance with Muslim Law as contemplated by section 2(a) of the Act, the order imposing liability to maintain the wife under section 125, Cr. P.C. will also cease, but the factum that such divorce has been granted may be a disputed question of fact. In such circumstances, either party to the proceeding under section 125, Cr. P.C. may file an application under section 127, Cr. P.C. for vacation of the said order. In such cases, the Court will be entitled to maintain an application under section 127, Cr. P.C. and pass appropriate orders on proof of the factum of divorce as contemplated by section 2(a) of the Act. Section 7 of the Act will not be a bar in respect of such application under section 127, Cr.P.C.";